This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-01-682

 

 

State of Minnesota,

Respondent,

 

vs.

 

Rebecca Ann Clark,

Appellant.

 

 

Filed ­­­February 5, 2002

Affirmed

Harten, Judge

 

Sherburne County District Court

File No. K7-99-1937

 

 

John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Timothy C. Rank, Assistants Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Walter M. Kaminsky, Sherburne County Attorney, 13880 Highway 10, Elk River, MN 55330-4601 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

Appellant Rebecca Ann Clark argues that there was insufficient evidence for a jury to convict her of conspiracy to commit a first-degree controlled substance offense and child endangerment.  Appellant also asserts that the district court erred by declining to sever her trial from that of her co-defendant, by admitting Spreigl evidence, and by denying her motion for a mistrial because the jury had access to a tape recorder during deliberations.  We affirm.

F A C T S

 

Appellant was convicted for conspiracy with her sister, Sandra Clark, Angela Meulners, Ted Holm, and others.  Meulners first met with Minneapolis Police Officer Mike Hentges, working undercover, in Elk River.  She expressed interest in buying red phosphorus, an ingredient used to manufacture methamphetamine, for a friend. 

When Hentges and Meulners met again, Meulners was accompanied by Ted Holm, her putative boyfriend.  Hentges told Meulners that he was getting his red phosphorus from a “girl” a “little bit west of here.”  Meulners replied, “That’s funny [because] my old man’s partner is a little bit west of here and she’s a girl.”  Appellant and Sandra Clark live six to seven miles west of Elk River.

That evening, the police conducted a warranted search of appellant’s duplex.  Appellant, Sandra Clark, and appellant’s 15-year-old daughter were present.  In Sandra Clark’s room, the police found a gram scale with traces of methamphetamine, a bucket with a funnel and coffee filters, and two methamphetamine recipes, one of which requires a 400-mililiter beaker.  In appellant’s bedroom, the police found a razor with traces of methamphetamine and powdered pseudoephedrine in a jewelry box.  In the kitchen, the police found a scale, a 400-milliliter beaker, and an address book containing a picture of Holm.  In the garage, the police found a funnel, rubber hose, glass beaker, toluene (a chemical), plastic jugs labeled “muriatic acid” and “paint thinner”, and a bottle labeled “vitablend.”  The team found spray cans containing cleaner; one of these cans was punctured in a way commonly used to extract ether for the manufacture of methamphetamine.  Appellant was subsequently arrested.

About a week later, when Hentges again met with Meulners and Holm, Holm told Hentges that a friend of his had recently “got popped” for manufacturing methamphetamine.  Holm described this friend as a woman who lived with her 50-year-old sister in Big Lake.  Sandra Clark is 50; she and appellant lived in Big Lake. 

The police executed a warranted search of a trailer home used by Holm and Meulners, among others.  Holm and Meulners were both present during the search.  The police found a rubber hose, a funnel with white residue, a bottle of lye, and a plastic jug labeled “muriatic acid.”  That same day, the police searched the residence of Wayne and Christina Holm in Champlin, where Ted Holm resided.  There they found brake cleaner, iodine crystals, cold tablets, paint thinner, filters, a paint can, a funnel, a baggie the police believed contained red phosphorus, and a book entitled, “The Secrets of Methamphetamine Manufacturing,” that contained the same recipe found at appellant’s home.  The recipe required the same size beaker found in appellant’s kitchen.

            Appellant was charged with one count of conspiracy to commit a controlled substance crime, one count of first-degree controlled substance crime, and child endangerment.  Sandra Clark, Ted Holm, Angela Meulners, Wayne Holm, Christina Holm, and two others were also charged.  Appellant then brought three unsuccessful motions.  She moved for severance from all defendants for trial purposes, but she and Ted Holm were tried together.  She moved to exclude Spreigl evidence of three prior searches, but the district court admitted part of the evidence.     Finally, she moved for a mistrial because the bailiff had provided the jury with a tape recorder to listen to audiotapes that had been admitted into evidence.  The district court had the tape recorder removed but denied the motion for a mistrial.

            The jury found appellant guilty of conspiracy to manufacture a controlled substance and of child endangerment.  She now challenges the sufficiency of the evidence and the denial of her motions.

D E C I S I O N

1.         Insufficient Evidence Claim

On appeal, this court’s review of a conviction challenged for insufficient evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, supports the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citations omitted).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Id.  Because a jury is in the best position to evaluate circumstantial evidence, its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

a.         Conspiracy

            Conviction for conspiracy requires an agreement between two or more people to commit a crime and an overt act in furtherance of that agreement.  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).  A conspiracy need not be established by direct evidence, but may be inferred from the circumstances.  State v. Watson, 433 N.W.2d 110, 115-16 (Minn. App. 1988), review denied (Minn. Feb. 10, 1989). 

            In her testimony, appellant did not explain why one of the spray cans was suspiciously punctured, why she had a bottle labeled “vitablend,” why there was a beaker of the size specified in the methamphetamine recipe found in Sandra Clark’s room, or why there were traces of methamphetamine on a razor blade in her room.  From this unexplained evidence, the jury could reasonably have inferred a conspiracy with Sandra Clark.

            There is also evidence of a conspiracy between appellant and Ted Holm.  The materials and chemicals found in appellant’s garage were similar to those found at the trailer home and at the residence of Wayne and Christina Holm.  One recipe found at that residence is identical to a recipe found at appellant’s home and requires a beaker of the size found in appellant’s kitchen.  Meulners told Hentges that her boyfriend’s partner was a woman who lived west of Elk River; appellant lives west of Elk River.  Holm told Hentges about his friend in Big Lake who was arrested, along with her 50-year-old sister, for manufacturing methamphetamine; appellant and her sister, 50, were arrested for that crime.

Viewing the evidence as a whole, we conclude that a jury could find sufficient evidence to convict appellant of conspiracy.  See State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985) (evidence need not exclude the possibility of innocence; it need only make the possibility seem unreasonable).  

b.         Child Endangerment

            Appellant was convicted of gross misdemeanor child endangerment because police found methamphetamine at her residence, where her 15-year old daughter also resides.  Knowingly permitting a child to be present where a person possesses a controlled substance is gross misdemeanor child endangerment.  Minn. Stat. §609.378, subd. 1(b)(2) (2000).  There is sufficient evidence to support appellant’s conviction.

2.         Denial of Severance Motion

Appellate courts make “an independent inquiry into any substantial prejudice to defendants that may have resulted from their being joined for trial.”  State v. DeVerney, 592 N.W.2d 837, 842 (Minn. 1999) (quotation omitted).  Neither appellant nor Ted Holm appears to have been prejudiced by the joint trial because both denied guilt and neither attempted to blame the other.   See DeVerney, 592 N.W.2d at 842 (prejudice occurs when parties offer inconsistent defenses or attempt to shift the blame to one another).   

            Minn. R. Crim. P. 17.03, subd. 3 (2) (2000) states that, when the prosecution intends to use a codefendant’s out-of-court statement that refers to a defendant, but is not admissible against a defendant, the  

court shall require the prosecuting attorney to elect one of the following options:

(a) a joint trial at which the statement is not received in evidence;

(b) a joint trial at which the statement is received in evidence only after all references to the defendant have been deleted, if admission of the statement with the deletions will not prejudice the defendant; or

(c) severance of the defendant.

 

Id.  Appellant moved for severance under this rule arguing that, because the statements of Holm and Meulners were inadmissible hearsay, the district court erred in not requiring the prosecution to choose one of these  options.

At the beginning of trial, appellant’s counsel generally objected to codefendant’s out-of-court statements under this rule, but thereafter did not identify which statements were included.  Rather, appellant’s counsel indicated that he would object statement by statement as the trial progressed:

MR. ADAMS:  [W]hat I did with this motion was  * * * put the Court on notice as the trial progressed, and I anticipated testimony from some particular witness[es] in the nature of hearsay comments about either my client or some other Co-Defendant that I was going to raise this objection * * * .

 

THE COURT:  I understand that.  As I understand it the whole issue as we come statement by statement is whether it’s a statement made in furtherance of the conspiracy, and if it is everybody understands it’s admissible.  If it isn’t then you’ll object on standard hearsay grounds.

 

MR. ADAMS:  Exactly. 

 

Appellant’s counsel did not object when Holm’s or Meulner’s statements were admitted into evidence.  Accordingly, appellant waived his right to object and we review the admission of this evidence under a plain error analysis.  See Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996).  Plain error requires (1) an error (2) that is plain and (3) that affects substantial rights.  State v. Patterson, 587 N.W.2d 45, 52 (Minn. 1998).   Courts consider a plain error to affect substantial rights if the error denies the defendant a fair trial or if it is reasonably likely that the error substantially affected the verdict.  Van Buren, 556 N.W.2d at 551.  There is other evidence that supports appellant’s conspiracy with both Holm and Sandra Clark.  See Patterson, 587 N.W.2d at 52 (no plain error because evidence as a whole supported the verdict). 

Because we are satisfied that Holm’s and Meulner’s statements did not substantially affect the verdict, their admission into evidence was not plain error.  The district court did not err in denying appellant’s motion for severance.

3.         Spreigl Evidence

            To admit Spreigl evidence, the trial court must find (1) clear and convincing evidence that the defendant participated in the past event, (2) that the Spreigl evidence is relevant and material to the state’s case, and (3) that its probative value outweighs the potential for unfair prejudice.  State v. Berry, 484 N.W.2d 14, 17 (Minn. 1992).  A trial court’s decision to admit evidence of other crimes will not be reversed absent an abuse of discretion.  State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993).  The trial court is in the best position to evaluate the state’s offer of proof.  See, e.g., State v. Shamp, 422 N.W.2d 520, 525 (Minn. App. 1988), review denied (Minn. June 10, 1988). 

            At trial, the state sought to introduce evidence from past residential searches in 1997, 1999, and 2000, where the police found methamphetamine or items associated with manufacturing methamphetamine.  During all three searches, law enforcement found evidence connecting appellant to the residence searched and to the items used in manufacturing methamphetamine. 

            To determine relevance, courts should focus on the similarity between the past event and the charged crime, “in terms of time, place and modus operandi.” State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (quotation omitted).  Two of the searches were within one year of the instant case and the other occurred three years earlier.  The 1999 search took place in the same duplex as the search leading to the instant charges and the other searches were in the Twin Cities Metropolitan area.  Additionally, all the searches involved methamphetamine and the 1999 and 2000 searches yielded evidence similar to that involved in this case. 

            Because of the similarities between the Spreigl evidence and evidence in the instant case, it is less likely the evidence was improperly admitted.  See Bolte, 530 N.W.2d at 198 (closeness of relationship between Spreigl evidence and evidence in the case being tried is dispositive).  Moreover, the district court lessened the danger of unfair prejudice by suppressing the more prejudicial evidence and by instructing the jury that it could not convict appellant because of the prior offenses.

We conclude that the district court did not abuse its discretion in finding clear and convincing evidence that appellant had participated in the Spreigl events and in admitting this Spreigl evidence. 

4.         Audiotape Machine in Jury Room

 Appellate courts do not disturb a trial court’s decision on the grant or denial of a mistrial absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). 

A trial court has the discretion to “permit the jury, upon retiring for deliberation to take to the jury room exhibits which have been received in evidence * * *, except depositions * * *.”  Minn. R. Crim. P. 26.03, subd. 19 (1) (2000).  Audio and video tapes are not considered to be depositions.  State v. Kraushaar, 470 N.W.2d 509, 515 (Minn. 1991).  It is the “preferable” practice, however, that a jury review tapes in the courtroom.  Id. at 516.[1]  The supreme court has held that allowing a jury to review a videotape in the jury room was not prejudicial error because 

            (i) the videotape viewed in the jury room was no different from the videotape that the jury would have seen in the courtroom, (ii) at worst, the replaying of the tape allowed the jury to rehear what it had already heard, (iii) the testimony of the victim was positive and consistent and was corroborated by other evidence, and (iv) it is extremely unlikely that the replaying of the tape by the jury affected the verdict as by prompting the jury to convict where it otherwise would not have done so.

 

Id.  Here, the tapes were played for the jury during trial; the jury later heard the same tapes in the jury room.  It is unlikely that replaying the tapes in the jury room would have caused the jury to reach a different verdict.  We are mindful that the taped evidence was but a small part of the evidence of a conspiracy.   

            We conclude that the district court did not abuse its discretion in denying appellant’s motion for a mistrial based on the audiotape machine being in the jury room.

            Affirmed.



[1] The district court stated that, had it been consulted, it would have had the jury review the tapes in the courtroom.